Níl aon Bunreacht Mar do Bhunreacht Féin: A Constitutional Right to Housing

When a Social House is not a Home

The fact that we are in the midst of a housing crisis has taken hold of the national consciousness. To its credit, the Irish media has consistently covered and humanised the issue, putting faces to the problem, allowing those unaffected to get a very tangible understanding of what homelessness looks like in post-boom, post-bust “recovering” Ireland. People are sleeping rough on the streets of their towns and cities, in numbers not seen for generations. Families are forced into the double rooms of functional hotels, living like an accused awaiting a verdict. Vast “Vulture Funds” from abroad, swoop up expansive housing developments, half-finished and unoccupied, or held in negative equity and leased to tenants. As seen in the plight of those leaving Tyrrelstown, they summarily serve notice of a lease’s non-renewal, with a short few weeks of warning and upend families from their ways of life. The numbers are affronting. In January we learned more people became homeless than in any other month on record.

We now understand “crisis” carries an array of connotations: the problem is widespread, bordering on ubiquitous and aggravated past a point of management or coping. Solutions (if they yet exist) are not readily accessible and the symptoms are doomed to be chronic. Political gesticulations during leaders debates in the run up to the General Election, saw Kenny and Martin ping-pong blame like parents attesting a child’s unruliness to the others’ hereditary traits or style of rearing.

Most egregious of the failures across the successive governments’ approaches to housing policy seems to have been the utter disregard for the adequate provision of social housing. Contextualising this against the backdrop of history paints an ugly picture. Ireland in decades past, despite crippled economies and a justifiable designation as a second world country, could house it’s inhabitants, even the most vulnerable. Responsibility for social housing in Ireland has traditionally been devolved from government to local authorities and supported through direct state funding and regulated as to standards in construction. Historically, Irish social housing was somewhat of an anomaly in the western world. Policy was directed at creating paths to homeownership and was in this way a means of asset-based welfare, originally directed at the rural working class and later urban communities too. In this way, it was much less of a social democratic safety net, seen throughout Europe, and was instead a means of creating capitalised classes.

Since the 1980s social housing construction rates have plummeted and people, who cannot afford to buy, have been forced into the private rental market. Negative equity plaguing developers and landlords, and competition in a crowded market work together to make rent prices soar. Poor regulation is seeing developers shirk off their responsibility to meet social housing quotas, and local authorities choke up the process with bureaucracy and ineptitude. The government has lacked the grit to grapple with the issue, and neoliberalism has perpetuated laissez-faire approaches when immediate interventionist solutions are required.

Justice Serves

At a Housing and Homelessness forum at the Department of the Environment, held weeks after the General Election, outgoing Minister for Environment Alan Kelly contended the problems now faced by the record number of homeless families and individuals were not the fault of the Executive, but indeed a result of our constitutional scheme. “I was repeatedly blocked from making provision for what I believed was the common good by the strength by which property rights are protected under Article 43 of the Constitution,” Kelly said, to a room of stakeholders, opposition politicians and members of housing organisations. He claimed he believed “that we need to honestly re-examine the balance between the protected and legitimate property rights of individuals, as property owners, and the wider needs and common good of society, including housing needs.”

This legalese smokescreen convinced few. “As a society, we need to reflect on the desired impact of the Constitution here.” Kelly’s assertion has further left some galled. In an open letter published in the Irish Independent, Master of the High Court, Mr Justice Edmund Honohan, deftly scathed the minister’s tactic and similarly, his government’s approaches to housing policy.

While property rights under the constitutional are carefully and extensively guarded (no doubt as a result of the insecurity brought about by being denied such rights for 800 years), they are not absolute. There are exceptional circumstances where the right to own property can be encroached upon by the State, in order to facilitate the “common good”.

This was established in the Supreme Court’s ruling in Re Article 26 and the Planning and Development Bill, 1999. The case was an Article 26 Reference, whereby the President (then Mary MacAleese) if in doubt of a bill’s constitutionality, calls upon the Supreme Court, to evaluate it’s constitutional status. The court deemed constitutional provisions of the bill which required developers seeking planning permission for residential housing to set aside up to 20% of the development for social and affordable housing. This, they saw, spoke to the law’s express consideration of the “common good”.
There are State powers necessary for the facilitation of many public needs including, as suggested by Honohan himself, road-widening. This type of legal logic in this case underpins encroachments on land ownership rights, like the compulsory acquisition of land. Referencing this precedent, Honohan emphatically concluded that “what we do about [the crisis] now is a political decision, not a legal one”.

Justice Honohan has a record of speaking out on the issue of the housing crisis. In December, following a judgment that criticised Danske Bank’s sale of over 400 repossessed homes and “distressed” properties to a trust fund, he spoke to the Sunday Independent about the Oireachtas’ failure to intervene. “It is open to the legislature to pass emergency legislation to incorporate a new body which would compulsorily acquire the property overnight at the stroke of a pen.” He called upon the state to buy the repossessed properties back from the vulture fund that had bought them from the bank at a low price. “There is a well-worn mechanism for compulsory acquisition” and it is a “cut and paste job to produce legislation”. His solutions are viable, practical, sustainable and immediate. His distaste for the government’s inaction was and remains palpable.

That a senior member of the judiciary has continued to break rank and specifically called out a member of government is demonstrative of the unprecedented severity of what is occurring. These extra-judicial criticisms remain impotent however. The Separation of Powers persists and the judiciary cannot force the hand of government. The courts are confined to work within the laws which are put before them.

Justice Honohan’s assessment of the law is watertight and his constructive criticisms of governmental policy are warranted and shared among the electorate. Here is someone with esoteric knowledge of the law, offering achievable actions.

While giving no ground to Kelly’s self-absolution, and detracting nothing from the honourable judge’s reserved rendering of the situation, a hypothetical lingers, begging to be asked: what if the constitution went further? What if housing was expressly mandated for?

One could argue this would make no difference, legally (accepting the Minister’s hands were not tied in inaction by any means). There is however considerable power in constitutional rhetoric.

A Right to a Solution

Many of the greatest modernisations in human rights and social change in Ireland bear the fingerprints of Mary Robinson. Speaking in interview, she once said “I had always thought of law as an instrument of social change” and referenced her time in Harvard during a time of great thinking regarding the Vietnam War and the Civil Rights movement.

Much of her legacy is found in the growing social equality of women, as she legally represented women in seminal cases relating to a women’s right to sit on a jury, the constitutional ban on divorce, adoption, welfare discrimination and legislation forcing women out of the civil service after marriage. When there was no political will or continued, Robinson found the law could catalyse change for the better.

The words “Right to” carry a significant weight inside the courts and out. People understand the idea instinctively. A central tenet of much of the anti water charges movement has been the notion that people have a fundamental human right to water.
It’s inclusion in the constitution has since been championed by TDs including Mick Wallace, gaining much ground among angered citizens but failing to move those in political and legal circles.

The right to adequate housing however is more easily subsumed into our constitutional scheme. The idea has been floated by scholars and activists for years, and it has strong international jurisprudence in modern democracies, notably South Africa, home of one of the world’s most innovative, dynamic constitutions. Arguably, advocating for the implementation of the right to housing into our highest law could garner greater traction.

The Irish Constitution, An Bunreacht na hEireann, was drafted in 1937 and reflected the prevailing Western democratic mores in it’s construction. A trait seen among laws passed at this time is an inherent aversion to socialistic policies seen as akin to Communism and radical left ideals.

The Universal Declaration of Human Rights, adopted later in 1948 following the Second World War, is a foundational document for international standards of governance. It recognises rights as being divided into two groups: civil and political, and economic, social and cultural (ESCR).

The former encapsulate what it legally means to be a citizen in terms of the capacity to participate in the justice system, politics and democracy. The right to vote, the right to be tried before a jury, the freedoms of speech and assembly are all within this ambit and are provided for expressly in the Irish constitution. By contrast, the rights to education, housing, healthcare and an adequate standard of living – central examples of the latter group – were all excluded from the Irish constitution’s express wording, on account of the apprehension of them being used as a communist tool to force the hand of government. ESCR all relate closely to the availability of resources, and many governments were wary of having constitutional duties in providing them under this mandate.

The two sets of rights share a complicated relationship, and superiority can be argued for either side. What use is the right free speech if someone is starving or illiterate? Then again, treating ESCR as rights at all distorts the functioning of a free market by demanding large-scale state intervention in the economy, and provides an excuse to downgrade the importance of civil rights.

One political and social revolution in particular has seen the value in enshrining ESCR in a country’s highest law. In February 1997, the fifth South African Constitution came into effect, containing in it a Bill of Rights essential to a nation scarred by Apartheid and oppression. Among the suite is the Right to Adequate Housing, which has since been fleshed out and articulated by the country’s Constitutional Court.

The effects have been extensive. The right to adequate housing imposes both negative and positive obligations on the state, often expressed as the obligations to “respect, protect and fulfil”. The obligation to respect is generally negative (to refrain from action, such as eviction for example), while the obligations to protect and fulfil are generally positive. The duty to intervene in instances where the right is being infringed upon by third parties, and the duty to actually provide houses for occupation would both be thought of as positive obligations.

A case decided in 2000, known as Grootboom, saw the court affirm that it was their place to rule on ESCR, and call out, condemn and mandate the government on account of it’s failure to uphold this human right, in both it’s positive and negative duties. Grootboom concerned 900 people (over 500 of whom were children) who had been living in pitiful conditions in a squat, just outside of Cape Town. The site lacked basic water, sewage and refuse removal services. They left this settlement to live in shacks and shelters on privately-owned, vacant land that had been earmarked for low-cost housing. The landowner however quickly obtained an order from a court to evict them.

The people’s homes were bulldozed and burnt, and their possessions were destroyed. After demanding temporary accommodation from the municipal government to no avail, the evictees asked the High Court to order the government to provide them with adequate temporary shelter or housing until they could obtain permanent housing. The case rose up to the Constitutional Court, which made an order of the municipal government to vindicate these people’s right to adequate housing. The government had first neglected to provide appropriate housing, and failed to intervene in the eviction served by the landowner.

Some would argue against the court having this jurisdiction, that to criticise the state’s action and mandate how they ought to act has little practical value. Litigation for housing rights can however have benefits and often, a catalytic effect. These are invaluable when faced with a crisis defined by inaction, as is the case in Ireland today.

Successful litigation of the right to housing results in a greater level of enjoyment, enforcement or realisation of that right. This can happen through changes in either the law or policy or a basic increase in state provision. There may also be indirect effects. Where a decision is a ground-breaking legal precedent but poorly implemented, it may serve as a strong reference point for subsequent cases which may prove more successful. Housing rights result in a heightened public awareness and consideration. This can exert pressure on elected officials to implement the court’s decision in a timely, effective way and the decision may act as a basis for future political lobbying. A right to adequate housing can guarantee human dignity and security and effective litigation can contribute significantly towards the goal of assuring that right for all.

Minister Kelly’s comments alleging constitutional binds have added insult to injury in a crisis where a basic facet of human existence is being denied: a home.

Ireland’s housing crisis is a mire of public policy failings, inaction and apathy. The incorporation of a constitutional right to adequate housing could provide a new paradigm with which to assess housing law and policy. This would upend the hegemonic constitutional base for property-owner’s rights, countering the idea that housing is primarily a commodity. Housing is a basic human need, which the state has failed to meet. Changing the constitutional rhetoric around this might signal to those in power that considerations of the market no longer trump the situations of those on the lowest rung of the ladder.

I used to have things to say about being a queer, leftie law student who aspired to be equal parts Mary Robinson and Ira Glass. Now, much like Whitney Houston once said" I have nothing. Nothing. NOTHING."